LeBlanc's Concrete & Mortar Sand Company
LeBlanc's Concrete & Mortar Sand Company (FMSHRC CENT 88-106-M): Ten citations split, with $225 in penalties
Apply this to your situation
This order from 1989 bound only the parties to this case; it isn't precedent. Ask about your situation and see what the current MSHA standards and Commission precedent say, with citations.
Plain-English summary
LeBlanc's Concrete & Mortar Sand Company operated Dudley's Pit, a Texas dredging and sand operation. MSHA cited ten conditions involving machine guarding, life-jacket use, flammable-liquid cleanup, fire extinguishers, and open-flame work. Judge George A. Koutras affirmed six citations, vacated four, and modified one significant-and-substantial designation to non-significant-and-substantial. The affirmed citations resulted in $225 in civil penalties. The judge found the loose dredge guard and failure to wear a life jacket significant and substantial, while the record did not establish a violation for several conditions involving the floating pump, fire hazards, and the separation between welding and stored liquids.
Decision snapshot
- Cited standards: 30 C.F.R. §§ 56.14006, 56.14001, 56.15020, 56.4102, 56.4230(a)(1), 56.4600(a)(1), and 56.4100(b)
- Outcome: Six citations were affirmed, four were vacated, one significant-and-substantial designation was modified to non-significant-and-substantial, and $225 in penalties were assessed.
- Key point: The judge required proof of a realistic exposure or ignition hazard, and treated the dredge guarding and life-jacket conditions as significant and substantial.
Full text (FMSHRC public release)
CCASE:
SOL (MSHA) V. LEBLANC'S CONCRETE & MORTAR SAND
DDATE:
19890424
TTEXT:
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Federal Mine Safety and Health Review Commission (F.M.S.H.R.C.)
Office of Administrative Law Judges
SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. CENT 88-106-M
PETITIONER A.C. No. 41-02775-05503
v. Dudley's Pit Mine
LEBLANC'S CONCRETE & MORTAR
SAND COMPANY,
RESPONDENT
DECISION
Appearances: Brian L. Pudenz, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for
the Petitioner;
Dudley J. LeBlanc, Owner, LeBlanc's Concrete &
Mortar Sand Company, Rosenberg, Texas, Pro Se,
for the Respondent.
Before: Judge Koutras
Statement of the Case
This is a civil penalty proceeding initiated by the
petitioner against the respondent pursuant to section 110(a) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
820(a), seeking civil penalty assessments for 10 alleged
violations of certain mandatory safety standards found in Part
56, Title 30, Code of Federal Regulations. The respondent filed a
timely answer and notice of contest, and a hearing was held in
Houston, Texas. The parties waived the filing of posthearing
briefs, but I have considered all of their oral arguments made on
the record during the hearing in my adjudication of this matter.
Issues
The issues presented in this case are (1) whether the
conditions or practices cited by the inspector constitute
violations of the cited mandatory safety standards, (2) the
appropriate civil penalties to be assessed for the violations,
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taking into account the statutory civil penalty criteria found in
section 110(i) of the Act, and (3) whether several of the
violations were in fact "significant and substantial."
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977; Pub. L.
95-164, 30 U.S.C. 801 et seq.
2. Part 56, Title 30, Code of Federal Regulations.
3. Commission Rules, 29 C.F.R. 2700.1 et seq.
Stipulations
The parties stipulated in pertinent part to the following
(Exhibit ALJ-1):
1. The name of the respondent company is LeBlanc's
Concrete & Mortar Sand Company with a place of business
near Rosenberg, Texas.
2. Jurisdiction is conferred upon the Federal Mine
Safety and Health Review Commission under the Federal
Mine Safety and Health Act, 30 U.S.C. 801 et seq. The
alleged violations took place in or involve a mine that
has products which affect commerce.
3. The name of the mine is Dudley's Pit, identification
number 41-02775. The mine is located near Richmond,
Texas in Fort Bend County. The size of the company and
mine is 7,480 production tons or hours worked per year.
4. The imposition of any penalty in this case will not
affect the respondent's ability to continue in
business.
5. The total number of assessed violations (including
single penalties timely paid) in the preceding
twenty-four months is zero.
6. On March 1, 1988, an inspection was conducted by
James S. Smiser and Joseph P. Watson (also known as Jim
Watson) authorized
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representatives of the Mine Safety and Health
Administration.
7. Ten Section 104(a) citations (numbers 03061705
through 03061714) were issued for violations of 30
C.F.R. 56.14006, 56.14001, 56.15020, 56.14001,
56.4102, 56.4230(a)(1), 56.46001, 56.14001, and
56.4100(b) respectively, on March 1, 1988.
8. All of the citations were abated within twenty-four
(24) hours by the respondent.
Discussion
When the hearing convened, the parties advised me that the
respondent wished to withdraw its contests with respect to
Citation Nos. 3061705 and 3061708 (photographic exhibits P-4 and
P-1). The respondent agreed to pay the full amount of the
proposed civil penalty assessments for the violations, and after
considering the request to withdraw the contests as a proposed
settlement pursuant to Commission Rule 30, 29 C.F.R. 2700.30,
the request was granted and the settlement was approved from the
bench. My decision in this regard is herein reaffirmed, and the
citations are affirmed as issued.
The remaining citations in issue in this proceeding are as
follows:
Section 104(a) "S&S" Citation No. 3061706, cites a violation
of 30 C.F.R. 56.14001, and the condition or practice states as
follows:
The guard covering main drive shaft and couplers on
dredge was broken, parts removed, and loose, exposing
employee to moving machine parts, a fall into dredge
sump, and a potential of being drown (sic) in water/oil
being held in bottom of dredge.
Section 104(a) "S&S" Citation No. 3061707, cites a violation
of 30 C.F.R. 56.15020, and the condition or practice states as
follows:
The dredge operator did not wear a life jacket on
dredge while on deck and where there is a danger from
falling into water, the dredge deck is not protected by
handrails.
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Section 104(a) "S&S" Citation No. 3061709, cites a viola-
tion of 30 C.F.R. 56.4102, and the condition or practice
states as follows:
The flammable or combustible liquid spillage and
leakage was not removed in a timely manner or
controlled to prevent a fire hazard on the dredge. The
sump of dredge contained a large amount of oil, diesel
fuel, and water floating under engine, pump, and other
equipment which could be ignited to produce a flash
fire and expose operator to fire hazard.
Section 104(a) "S&S" Citation No. 3061710, cites a violation
of 30 C.F.R. 56.4230(a)(1), and the cited condition or practice
states as follows:
A fire extinguisher was not provided on the dredge
where a fire or its effects could impede escape from
self-propelled equipment. Operator is exposed to fire
hazard from diesel fuel, oils, and grease used on
dredge motor.
Section 104(a) "S&S" Citation No. 3061711, cites a violation
of 30 C.F.R. 56.4600(a)(1), and the cited condition or practice
states as follows:
A fire extinguisher was not provided in the welding
area of shop where electric arc and cutting torch were
in use. Electrical circuits are also in area which
could produce a hazard by the use of a electrical
conductive extinguishing agent. A multi-purpose dry
chemical fire extinguisher or other type with at least
a 2-A; 10 B:C rating shall be used. Combustibles are
stored in area of shop which could be ignited by
welding activity.
Section 104(a) non-"S&S" Citation No. 3061713, cites a
violation of 30 C.F.R. 56.14001, and the cited condition or
practice states as follows:
The V-belt drive of floating fresh water pump was not
provided with a guard to protect ingoing pinch points.
Gravity reduced due to location of pump.
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Section 104(a) non-"S&S" Citation No. 3061712, cites a violation
of 30 C.F.R. 56.14001, and the cited condition or practice
states as follows:
The V-belt drive on shop air compressor was not
provided with a guard to protect employees from ingoing
pinch points. Gravity is reduced due to location of
drive.
Section 104(a) "S&S" Citation No. 3061714, cites a violation
of 30 C.F.R. 56.4100(b), and the cited condition or practice
states as follows:
Welding, which produces open flame and sparks, was in
area of shop which also had bulk oils stored with open
caps and hand pumps. Employee was exposed to fire
hazard. Gravity is increased due to lack of a fire
extinguisher being available at area.
Petitioner's Testimony and Evidence
MSHA Inspector James R. Smiser, testified as to his
experience and training, and he confirmed that he conducted an
inspection at the respondent's mining operation on March 1, 1988,
and issued the citations which are in issue in this proceeding.
Citation No. 3061706
Inspector Smiser stated that he issued this citation after
observing that the mesh grating guard used to guard the main
drive shaft and coupler on the dredge was loose and unsecured. If
one were to step on the grating, it would give and go down under
the weight of anyone walking on it. Mr. Smiser identified exhibit
P-2 as a photograph of the mesh guard in question.
Mr. Smiser confirmed that he made a gravity finding of
"highly likely," and he did so because the dredge deck was wet
and coated with oil, making it slippery, and he believed that if
anyone stepped on the grating it would give way and expose the
individual to the hazard of falling into the exposed moving drive
shaft and coupler.
Mr. Smiser confirmed that he made a negligence finding of
"moderate" because the dredge operator was required to be on the
dredge, and he should have been aware of the readily observable
condition of the loose grating.
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On cross-examination, Mr. Smiser confirmed that when he stepped
on the loose grating guard, it gave some, but did not touch the
coupler. He also confirmed that he had no knowledge that the
grating had been in that condition for 2 years, and that his
inspection was the first time he had observed the condition. He
stated that he discussed the condition with superintendent Jim
Davis, and agreed that the loose grating was probably caused by
fatigue resulting from a broken angle iron which helped support
the grating.
Citation No. 3061707
Inspector Smiser confirmed that he issued the citation after
observing that the dredge operator was not wearing a life jacket
while the dredge was in operation. He stated that the dredge
operator walked around the dredge while inspecting the equipment,
and at the time of the inspection the dredge deck was wet and
slippery due to the presence of water and oil, and the dredge
perimeter was not equipped with handrails. Under these
circumstances, he concluded that the violation was "significant
and substantial" because it was reasonable likely that the dredge
operator could drown if he slipped and fell off the barge without
a life jacket.
Mr. Smiser confirmed that he made a negligence finding of
"moderate" because the respondent had been in the dredging
business for years and should have been aware of the requirement
for the wearing of a life jacket.
Mr. Smiser stated that he spoke with superintendent Jim
Davis who advised him that life jackets are made available to the
dredge operator and that the operator apparently chose not to
take one with him or to wear it at the time of the inspection.
On cross-examination, Mr. Smiser stated that he did not know
the dimensions of the dredge and made no measurements. He
described the pilot house where the dredge operator is stationed
when he operates the dredge, and estimated that it was 5 feet
wide. He confirmed that he observed no life jacket on the dredge,
and that Mr. Davis obtained one after the inspection and provided
it to the dredge operator. Mr. Smiser identified photographic
exhibitp-3(a) as the dredge in question, and he estimated that it
was anchored approximately 100 to 150 yards off shore, but he did
not know the depth of the water at that location. He also
identified photographic exhibit P-3(b) as a photograph of a
portion of the edge of the dredge deck where no handrails were
installed.
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Mr. Smiser stated that if the water was "knee deep," he would
still require the dredge operator to wear a life jacket because
if he slipped or fell overboard and struck his head, he would
still be exposed to a drowning hazard if he was not wearing a
life jacket.
Mr. Smiser stated that in accordance with MSHA's policy, if
the dredge were equipped with protective hand-rails, a life
jacket would not be required. He confirmed that there is no
mandatory standard requiring hand-rails on a dredge, and that in
the absence of hand-rails, there is a presumption that a dredge
operator without a life jacket would be exposed to the hazard of
falling overboard at any given time while walking around the
dredge performing his duties.
Mr. Smiser confirmed that he spoke with the dredge operator
and asked him why he was not wearing a life jacket, but received
no response or explanation.
Citation No. 3061709
Mr. Smiser stated that he issued the citation after
observing an accumulation of combustible and flammable oil and
diesel fuel below the dredge engine and sump pump. The liquid had
spilled or leaked from the engine or sump and it was mixed with
water and was floating on the surface beneath the engine. He
identified the material as the "shiny" material shown behind the
batteries and below the engine in photographic exhibit P-5.
Mr. Smiser confirmed that he made a gravity finding of
"reasonably likely," and considered the violation as significant
and substantial because the combustible materials could have been
ignited and caused a "flash fire" from the heat of the engine.
Although the operator's compartment was located 15 to 20 feet
from the sump and engine area, the absence of a life jacket and a
fire extinguisher on the dredge, and the fact that diesel fuel
was stored on the dredge, added to the hazard in that in the
event of a fire, the dredge operator would be unable to safely
remove himself from the dredge and could suffer fatal injuries.
Mr. Smiser confirmed that he made a negligence finding of
"moderate" because the leakage or spillage was readily observable
and the respondent should have been aware of the requirement to
timely remove the accumulated materials.
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On cross-examination, Mr. Smiser stated that he did not measure
the accumulations, but estimated they were 6 to 8 inches deep. He
confirmed that he had no knowledge of the "flash point" of the
accumulated oil or fuel, and did not know how much heat was
generated by the engine, or how hot it had to be in order to
ignite the materials or cause a flash fire. He assumed that oil
and fuel, by their-nature, are combustible and flammable.
Mr. Smiser stated that the sump is located approximately 12
to 15 inches below the deck level of the dredge, and he had no
knowledge of the size and type of the dredge engine.
Citation No. 3061710
Mr. Smiser confirmed that he issued the citation after
finding that no fire extinguisher was provided for the dredge
which was the subject of the previous citations. Given the
potential fire hazard presented by the accumulation of
combustible fuel and oil at the dredge engine and sump area, as
described with respect to Citation No. 3061709, and the fuel
stored on board, he believed that it was reasonable likely that a
fire would occur, and if it did, the absence of a fire
extinguisher would not provide a means for extinguishing the
fire, and the lack of a life jacket for use by the dredge
operator would have impeded his escape from the hazard. Mr.
Smiser confirmed that he considered the dredge to be
self-propelled equipment for which a fire extinguisher was
required. Under these circumstances, he concluded that the
violation was significant and substantial.
Mr. Smiser confirmed that he made a negligence finding of
"moderate" and that he did so because superintendent Davis
advised him that a fire extinguisher had previously been provided
for the dredge, and that one was obtained and provided by Mr.
Davis after the inspection. Under these circumstances, Mr. Smiser
concluded that the respondent was aware of the requirement for a
fire extinguisher and that it knew or should have known about the
requirement.
On cross-examination, Mr. Smiser confirmed that he and Mr.
Davis were transported to the dredge by a small boat, but he had
no knowledge as to whether another boat or barge used to
transport fuel and the dredge operator to the dredge was also
tied up and available for the dredge operator at the time of the
inspection. Mr. Smiser stated further that the pilot house
containing the dredge controls had one door.
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Citation No. 3061711
Mr. Smiser confirmed that he issued the citation after he
found that a multipurpose dry chemical fire extinguisher was not
provided at the shop area where electrical welding work was being
performed on a dredging bucket. He stated that fluids and oils
were being used and stored in the shop, and he observed three or
four 55-gallon drums of oil stored in one corner of the shop, and
one of the drums was equipped with a hand pump. He estimated that
these drums were located approximately 8 to 10 feet from where
the welding or cutting was taken place.
Mr. Smiser confirmed that he made a gravity finding of
"moderate" and considered the violation to be significant and
substantial because it was reasonably likely that an "air arc"
generated by the type of work going on could spray small pieces
of hot metal in the shop and ignite the oil and other fluids
which were present in the shop. However, he believed that in the
event of a fire, the workers in the shop area could quickly exit
the shop.
Mr. Smiser confirmed that he made a negligence finding of
"moderate" because he believed that the respondent knew or should
have known about the requirement for a fire extinguisher in the
shop.
On cross-examination, Mr. Smiser stated that he had no
knowledge of the size of the shop, but estimated that it was
approximately 100 x 200 feet, and he characterized it as
"pretty good size," with an open entrance.
Mr. Smiser confirmed that the welding truck was parked
inside the shop, and the actual welding work was taking place
outside the shop entrance immediately below the shop roof-line
and approximately 4 to 5 feet outside of the shop.
Mr. Smiser stated that he could not recall the precise
cutting or welding process which was taking place, but believed
that it was an "air-arc" cutting apparatus which used compressed
air. He did not believe that an open flame process which utilizes
acetylene gas or oxygen, or electric welding, was being used, but
confirmed that both of these processes were available for use. He
confirmed that the bucket in question was on the ground.
Mr. Smiser confirmed that the cited standard, section
56.4600(a)(1), requires that a multipurpose dry chemical fire
extinguisher be available when electrical arc or open flame
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welding or cutting work is being performed, and that the intent
of the standard is to insure that an appropriate fire
extinguisher be available in the event the kind of welding taking
place creates an electrical hazard.
Citation No. 3061712
Mr. Smiser confirmed that he issued the citation after
finding that the V-belt drive on a compressor located in the shop
was not guarded. He stated that employees had access to the area
where the compressor was located, and that tools and other
materials were located and stored in the area. Mr. Smiser
described the compressor as a "large tank" located in the corner
of the shop, and he stated that the unguarded belt was mounted on
top of the compressor approximately 5 to 5-1/2 feet above the
shop floor, and that it was to the rear of the compressor facing
the outside shop wall.
Mr. Smiser stated that he made a gravity finding of
"unlikely" and did not consider the violation to be significant
and substantial because he believed it was unlikely that an
injury would occur due to the location of the unguarded belt. He
did not believe it was likely that an employee would get caught
in the unguarded belt and suffer an injury. He confirmed that the
respondent's negligence was low because it was probably not aware
that the belt was required to be guarded.
On cross-examination, Mr. Smiser stated that if someone
deliberately wanted to get into the unguarded belt, they could do
so by reaching behind the compressor. He also believed that
someone could contact the unguarded belt through inattention, but
conceded that there was a "slim chance" of anyone contacting the
belt.
Mr. Smiser stated that he did not believe that the cited
belt in question was guarded "by location," and that MSHA's
informal policy recognizes "guarding by violation" only in
instances where unguarded pinch points are located 7 feet off the
ground.
Citation No. 3061713
Inspector Smiser confirmed that he issued the citation after
finding that the V-belt drive on the fresh water floating pump
motor was not provided with a guard to protect the exposed pinch
points. He identified photographic exhibit P-9 as a photograph of
the pump in question. He confirmed that he made a gravity finding
of "unlikely" and did not consider the violation to be
significant and substantial because it was
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unlikely that an employee would be at the pump location when it
was started up or in operation. Due to the location of the pump,
and the fact that the motor was activated from the plant, he did
not believe that it was likely that an employee would be exposed
to a hazard.
On cross-examination, Mr. Smiser stated that the cited
mandatory standard, section 56.14001, requires that a belt drive
"which may be contacted" be guarded. He confirmed that Mr. Davis
advised him that under normal operating circumstances, no one
would be on the pump barge.
Citation No. 3061714
Mr. Smiser confirmed that he issued the citation because the
welding taking place in the shop area as previously described
with respect to Citation No. 3061711 was taking place at the shop
area where flammable or combustible oils and fluids were stored
or handled. Mr. Smiser confirmed that while both citations were
issued for the same welding or cutting work which was being
performed on the bucket outside the shop, Citation No. 3061714,
was issued for performing welding work in an area where open
flame welding was taking place in an area where combustible or
flammable oils and fluids were stored. Performing such work in
such an area is prohibited by the standard.
Mr. Smiser stated that the coil welding which was taking
place produces open flame sparks, and he determined that an
injury was reasonably likely in that in the event of a fire
someone would probably suffer minor burns. For these reasons, he
determined that the violation was significant and substantial.
Mr. Smiser confirmed that he made a finding of "low"
negligence, and that he did so because Mr. Davis advised him that
he was in the process of moving the stored materials to another
location.
Respondent's Testimony and Evidence
Dudley J. LeBlanc, respondent's owner, testified that his
concrete and sand dredging operation is a very small business,
and that he employs four individuals at his operation. One person
operates the dredge, one operates the plant, one operates the
loaders which load the trucks, and one person works in the
office. He further stated that he is open for business 5 days a
week, from 7:00 a.m. to 5:00 p.m.
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Citation No. 3061706
Mr. LeBlanc conceded that the metal grating provided to
guard the dredge drive shaft and couplers was loose and in need
of repair because of a broken angle iron support. However, he
pointed out that most of the drive shaft was located under the
grating which was firmly in place as shown by photographic
exhibit P-2. He also stated that the machine gear box which is
shown in the photograph is normally in that raised position.
Although the guarding was loose, Mr. LeBlanc stated that one
could walk on it and it would not give or contact the drive shaft
or coupler.
Citation No. 3061707
Mr. LeBlanc stated that he has instructed the dredge
operator to wear a life jacket while working on the dredge, and
that he is provided with a jacket. Although he was not present
during the inspection, Mr. LeBlanc believed that a life jacket
was provided and located in the pilot house located at the end of
the dredge. After viewing photographic exhibit P-3(a), Mr.
LeBlanc estimated that the dredge was located 10 to 15 feet from
the bank, and was in 4 or 5 feet deep water on the day of the
inspection. However, he confirmed that during any given day, the
dredge moves from one location to another during the dredging and
pumping operation, and that it does operate in water which is 30
feet deep.
Mr. LeBlanc stated that the dredge was 16 feet wide and 24
feet long, with two 4 x 20 foot floats. The dredge contains a
pilot house, an 8 x 10 foot pump, four winches, and a Detroit
engine and hydraulic pump. Diesel fuel is used to drive the
dredge, and there is a 900 gallon fuel tank at the rear of the
dredge.
Citation No. 3061709
Mr. LeBlanc stated that the engine and sump leakage in
question was not unusual in that the packing around the sump
drive shaft causes leakage. He confirmed that the spillage and
leakage cannot be emptied into the water, and that it is
periodically removed and taken ashore. He has now devised a
method to automatically pump out the spillage and remove it from
the dredge.
Mr. LeBlanc stated that while diesel fuel is combustible,
its ignition point is so high that one could throw a lighted
match on the materials and it will not ignite. He confirmed that
the dredge operator is permitted to smoke while in the
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pilot house, and that a water can is available in the house for
cigarette butts. The operator is not permitted to smoke while
working on the dredge outside of the pilot house.
Citation No. 3061710
Mr. LeBlanc confirmed that since he was not on the dredge
during the inspection, he did not know whether a fire
extinguisher was aboard. He stated that an 8 x 20 foot small
barge used for transporting fuel is always tied up at the dredge,
and it can be used by the dredge operator in an emergency. He
stated that the pilot house has two doors, and it contains the
dredge controls and radio and communications equipment.
Citation No. 3061711
Mr. LeBlanc confirmed that he was not present during the
inspection and has no knowledge as to whether a fire extinguisher
was provided for the shop area. However, he did observe a C.O.
five extinguisher in the shop in the evening after the
inspection. He confirmed that the welding operation was taking
place outside of the shop and that the bucket which was being
serviced was on the ground. Since it was on the ground, he did
not believe that any sparks or arcs would reach the oil stored
inside the shop. In the event welding was taking place above the
stored oil drums, he would concede that arcs and sparks could
fall below and onto the oil drums, but since this was not the
case, he did not believe that any hazard was present.
Citation No. 3061712
Mr. LeBlanc stated that the cited unguarded compressor belt
was at approximate "eye-level" and that the compressor was
mounted on 4 x 4 blocks in the corner of the shop. He stated
that in order to change out the belt located at the rear of the
compressor, one would have to physically move the compressor in
order to gain access to the belt. He stated that he abated the
citation by installing a bar across the compressor to provide a
physical barrier, and that the V-belt itself was not required to
be guarded.
Citation No. 3061713
Mr. LeBlanc stated that under normal operating procedures,
no one is required to be on the barge on which the fresh water
pump was located. The pump motor is activated from shore in the
plant by means of a switch located 200 to 300 feet from the
barge, and that any engine priming is done from the shore some
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20 to 30 feet away. He stated that the pump is located on a 6 x
6 foot barge which rests on floats, and that no one is permitted
to be on the barge while the pump is in operation. He confirmed
that someone is on the barge only once a week for service before
dredging is started, but that all of the electricity is
deenergized and the pump is shut down. When major repairs are
required, the pump is physically lifted ashore by means of a
cherry picker.
Citation No. 3061714
Mr. LeBlanc confirmed that the welding work in question was
taking place outside of the shop at the same location and on the
same piece of equipment where Citation No. 3061711 was issued. He
conceded that the work was being performed with an acetylene
oxygen cutting torch which produced an open flame, and although
he had available a "plasma cutter that you cut with electricity,"
it was inoperative.
Findings and Conclusions
Fact of Violations
Citation No. 3061706, 30 C.F.R. 56.14001
The inspector issued the citation after finding that the
wire mesh grating guard used to guard the dredge drive shaft and
coupler was loose and unsecured. The inspector confirmed that the
respondent's superintendent agreed that the grating was loose
because of fatigue resulting from a broken angle iron used to
support the guard, and Mr. LeBlanc conceded that this was the
case and that the guard was in need of repair. Although Mr.
LeBlanc believed that most of the drive shaft was protected and
disagreed with the inspector's belief that the grating would give
and move down if someone were to walk on it, the fact remains
that the guard was not securely in place, and I believe one can
reasonably conclude that through fatigue and wear, it would have
come completely loose over time and exposed one to a hazard of
falling into the moving drive shaft and coupler. I conclude and
find that a violation has been established, and the citation IS
AFFIRMED.
Citation No. 3061707, 30 C.F.R. 56.15020
The evidence establishes that the dredge operator was not
wearing a life jacket while the dredge was in operation and while
he was walking around a slippery deck performing his duties. The
dredge was not provided with any protective handrails around its
perimeter, and in the event the operator
Page 16
~674
fell into the water, which I believe was reasonably likely given
the slippery deck conditions, he could possibly drown. Although
Mr. LeBlanc stated that the dredge was located in 4 or 5 feet of
water, he confirmed that on any given day the dredge moves around
and sometimes operates in water 30 feet deep. Although the
respondent's evidence indicates that a life jacket may have been
provided for the dredge operator's use, the fact remains that he
was not wearing it. Under the circumstances, I conclude and find
that a violation has been established, and the citation IS
AFFIRMED.
Citation No. 3061709, 30 C.F.R. 56.4102
The inspector issued the citation after observing a
combination of oil, diesel fuel, and water floating under the
dredge sump pump and engine located approximately 12 to 15 inches
below the deck level of the dredge. The inspector did not measure
the accumulated materials, but estimated they were 6 to 8 inches
deep. The cited section 56.4102, provides that "flammable or
combustible liquid spillage shall be removed in a timely manner
or controlled to prevent a fire hazard."
30 C.F.R. 56.2 defines the term "combustible" as "capable
of being ignited and consumed by fire." The term "flammable" is
defined as "capable of being easily ignited and of burning
rapidly." The term "Flash Point" is defined as "the minimum
temperature at which sufficient vapor is released by a liquid or
solid to form a flammable vapor-air mixture at atmospheric
pressure."
Mr. LeBlanc testified that due to the packing around the
shell of the water pump, it is impossible to prevent water from
leaking and mixing with oil and hydraulic fluid which may be
present when the hoses break. He confirmed that any such spillage
is periodically cleaned up and contained within the dredge, and
then taken to shore and disposed of. Although he conceded that
the material may be considered combustible, he stated that the
ignition point is so high that it would not burn even if one were
to throw a lighted match on it. Mr. LeBlanc's testimony in this
regard is unrebutted.
The evidence here establishes that the accumulated materials
were a mixture of water, which one may reasonably assume was
leaking from the water pump, and oil and diesel fuel. Section
56.4102, requires the removal or control of "flammable or
combustible spillage. In my view, in order to establish a
violation, a determination must be made by the inspector as to
whether the accumulations he observed were in fact combustible or
flammable. Given the mixture of water
Page 17
~675
which was present, and Mr. LeBlanc's unrebutted testimony with
respect to the absence of an ignition point high enough to ignite
the materials in question, I cannot conclude that the petitioner
has presented any credible probative evidence to establish the
combustibility or flammability of the materials cited by the
inspector. Although the inspector was of the opinion that a
"flash fire" could have resulted from the heat generated by the
engine, he conceded that he had no knowledge as to the flash
point of the accumulated oil and fuel, how much heat was
generated by the engine, or whether the engine was hot enough to
generate a flash fire. Under the circumstances, I conclude and
find that the petitioner has failed to establish that the
accumulated materials were in fact combustible or flammable.
Accordingly, I conclude and find that a violation has not been
established, and the citation IS VACATED.
Citation No. 3061710, 30 C.F.R. 56.4230(a)(1)
The inspector issued the citation after finding that a fire
extinguisher was not provided for the self-propelled dredge. The
cited section 56.4230(a)(1), provides that "whenever a fire or
its effects could impede escape from self-propelled equipment, a
fire extinguisher shall be on the equipment."
The inspector believed that an accumulation of fuel and oil
at the sump pump area presented a potential fire hazard, and that
in the event of a fire, and in the absence of a fire
extinguisher, there would be no available means to fight the
fire. The accumulations noted by the inspector were the same
accumulations previously cited in Citation No. 3061709. That
citation was vacated for a lack of any credible evidence to
establish that the accumulations were combustible or flammable.
I find no problem with a safety standard which directly and
clearly requires that a fire extinguisher be available on a
dredge in the event of a fire. However, I do have a problem with
the language of the particular standard cited in this instance.
The standard requires a fire extinguisher only if it can be shown
that "a fire or its effects" could impede an escape from
self-propelled equipment. I find no evidence in this case to
establish that any fire or its effects could have impeded the
escape of the dredge operator from the dredge. Although the
absence of a life jacket may have effectively impeded his escape,
the respondent here has already been charged with a violation for
the failure of the dredge operator to wear a life jacket. The
intent of the standard is fire protection, and it is not a life
jacket requirement.
Page 18
~676
On the facts of this case, the dredge was located 10 to 15 feet
from shore in water 4 to 5 feet deep, and Mr. LeBlanc's
unrebutted credible testimony reflects that a small barge is
always tied up to the dredge for use in any emergency. In the
event of any fire, the dredge operator could readily jump
overboard, or use the barge as a means of leaving the dredge.
Under all of these circumstances, including the lack of any
evidence to establish that a fire, or its effects, would have
impeded the escape of the dredge operator, I conclude and find a
violation has not been established. Accordingly, the citation IS
VACATED.
Citation No. 3061711, 30 C.F.R. 56.4600(a)(1)
In this instance, the respondent is charged with an alleged
violation of mandatory standard 30 C.F.R. 56.4600(a)(1), which
provides as follows:
Extinguishing Equipment.
(a) When welding, cutting, soldering, thawing, or
bending--
(1) With an electric arc or with an open flame where an
electrically conductive extinguishing agent could
create an electrical hazard, a multipurpose
dry-chemical extinguisher or other extinguisher with at
least a 2-A:10-B:C rating shall be at the worksite.
The inspector confirmed that he issued the citation because
a multi-purpose dry chemical fire extinguisher was not provided
at the location where welding work was being performed on a
dredging bucket outside of the shop. The citation states that an
electric arc and cutting torch were in use during the welding
process, that electrical circuits were present, and that these
circuits could produce a hazard by the use of an electrically
conductive extinguishing agent.
The inspector testified that electrical welding work was
being performed on the bucket in question, and that he was
concerned that an "air arc" generated by the type of welding work
taking place could have sprayed small pieces of hot metal into
the shop and ignited some oil and other fluids which were stored
in drums inside the shop. In short, the testimony of the
inspector reflects that he was concerned about a fire hazard,
rather than an electrical hazard. Although the citation alluded
to the presence of certain electrical circuits,
Page 19
~677
the inspector's testimony is devoid of any reference to any such
electrical circuits or electrical hazards.
In my view, the intent of the standard is to preclude the
use of an extinguishing agent or apparatus capable of conducting
electricity, thereby introducing an electrical hazard if the
proper type of extinguisher is not available when work is being
performed with an electric arc or open flame. As an example, the
inspector stated that if a water fire extinguisher were being
used, it could create an electrical hazard (Tr. 60).
The inspector testified that electrical welding was taking
place, and that the work included the use of an "air arc process"
which is a cutting method that uses compressed air to remove
molten metal. He confirmed that he could not recall whether an
electric or gas process was being used, nor could he recall
whether an electrical welding device or a torch open flame device
using oxygen acetylene or propane was being used. In any event,
he confirmed that the term "air arc" could apply to either a
torch welding system or an electric system, and that the
respondent was using one or the other, and no other type of
system (Tr. 59).
Mr. LeBlanc confirmed that he was not present during the
inspection and he had no knowledge as to whether or not any fire
extinguisher was provided at the location where the welding work
in question was being performed. He conceded that the work was
being performed with an acetylene cutting torch which produced an
open flame.
On the facts presented here, although the inspector could
not recall which of the two welding systems were being used
(electric arc or open flame), Mr. LeBlanc confirmed that it was
the latter. The inspector's credible testimony establishes that
no fire extinguishing agent or device was available at the
location where the work was being performed. Although one may
argue that in the absence of any fire extinguisher, an
electrically conductive extinguishing agent was not present to
create an electrical hazard, my construction of the intent of the
standard leads me to conclude and find that a multipurpose
dry-chemical extinguisher was required to be available at the
work location in question. Since it was not, I further conclude
and find that a violation has been established, and the citation
IS AFFIRMED.
Citation No. 3061712, 30 C.F.R. 56.14001
The evidence establishes that the compressor drive unit was
not guarded to prevent contact with an exposed moving
Page 20
~678
machine part. Although the evidence establishes that the
unguarded unit was facing the wall, and that it had to be moved
in order for one to gain access to it, I cannot conclude that it
was "guarded by location." The inspector stated that the
unguarded drive was approximately 5 to 5-1/2 feet above ground
level, and Mr. LeBlanc confirmed that it was at "eye level." The
inspector also testified that the compressor was located in a
shop area where tools and other materials were located and
stored, and that employees had ready access to the area. Although
the inspector agreed that it was unlikely that anyone would get
caught in the unguarded drive unit and suffer an injury, the
intent of the guarding standard is to preclude the possibility of
anyone contacting an exposed and unguarded pinch-point through
inattention, inadvertence, or ordinary human carelessness. See:
Secretary of Labor v. Thompson Brothers Coal Company, Inc., 6
FMSHRC 2094 (September 1984). I conclude and find that a
violation has been established, and the citation IS AFFIRMED.
Citation No. 3061713, 30 C.F.R. 56.14001
The inspector issued the citation after finding that a belt
drive unit on a floating fresh water pump was not guarded over
its "ingoing pinch points." The pump was installed on a 6 x 6
foot barge which is supported by floats, and it was located on
the water 20 x 30 feet off shore (photographic exhibit P-9).
The inspector believed that it would be unlikely that anyone
would be on the barge when the pump was started from the plant,
and due to the location of the pump, he did not believe that it
was likely that anyone would be exposed to a hazard. Mr.
LeBlanc's unrebutted credible testimony reflects that the pump
motor is activated by means of a switch located in the plant
which was located some 200 to 300 feet from the barge, and that
any priming of the pump is done from shore. Mr. LeBlanc confirmed
that no one is required to be on the barge during the normal
operation of the pump, and that although someone may be on the
barge once a week for service before any dredging is begun, the
pump is deenergized and shut down, and if any major repairs to
the pump are required, the pump is lifted out of the water with a
cherry picker and taken ashore for repairs.
I find no evidence to support any reasonable conclusion that
there existed a reasonable possibility of anyone contacting the
unguarded pump belt drive unit in question, and the petitioner
has presented no evidence to establish that anyone would ever be
near the belt drive while the pump was in operation. Under the
circumstances, I conclude and find that a
Page 21
~679
violation has not been established, and the citation IS VACATED.
Citation No. 3061714, 30 C.F.R. 56.4100(b)
The inspector issued the citation because of the presence of
oils and fluids in the shop area where welding was taking place.
Section 56.4100(b), prohibits the use of an open flame where
flammable combustible liquids, including greases, are stored or
handled. The inspector testified that he observed several 55
gallon drums of oil, one of which had a hand pump for dispensing
the oil, and three or four drums of petroleum fuel. The inspector
confirmed that the superintendent advised him that a new storage
area was being prepared to store the drums of oil and fluids in
question.
The evidence establishes that the oil and fluid drums in
question were stored inside the shop area in one corner, and that
the welding work in progress was taking place outside of the
shop. The inspector had no knowledge as to the types of fluids or
oils which were in the drums, and he presented no credible
testimony or evidence to establish that the oils and fluids were
in fact combustible or flammable. He confirmed that section
56.4100 does not establish any particular distance parameters
requiring the separation of stored flammable and combustible
materials from open flames, and assumed that the use of an open
flame in the same building where such materials are stored would
be prohibited, unless there was an appropriate distance between
the two or a partition isolating the materials from an open
flame. He conceded that in this case, he simply concluded that
the materials and open flame welding were in "close enough
proximity" to present a hazard (Tr. 79-80).
In this case, the evidence establishes that the oil and fuel
drums were stored inside the shop approximately 8 to 10 feet away
from where the welding was taking place (Tr. 52). The shop was
approximately 100 x 200 feet, with an opening in the front of
approximately 50 to 75 feet. The dredge bucket which was being
worked on was located outside of the shop on the ground some 4 to
5 feet beyond the roofline of the shop (Tr. 56). Thus, the drums
in question were stored inside the shop approximately 12 to 15
feet from where the dredge bucket was located outside of the
shop. Under these circumstances, I conclude and find that there
was an adequate physical separation between the outside shop area
where the work was being done and the area inside the shop where
the drums which were not proven to contain combustible or
flammable materials were stored, and that the work location was
not, by any reasonable interpretation, a location where flammable
or combustible
Page 22
~680
liquids were stored. Accordingly, I further conclude and find
that a violation has not been established, and the citation IS
VACATED.
Significant and Substantial Violations
A "significant and substantial" violation is described in
section 104(d)(1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard." 30
C.F.R. 814(d)(1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum the Secretary of Labor must prove: (1)
the underlying violation of a mandatory safety
standard; (2) a discrete safety hazard--that is, a
measure of danger to safety-contributed to by the
violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, the Commission stated further as follows:
We have explained further that the third element of the
Mathies formula "requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury."
U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance with the
language of section 104(d)(1), it is the contribution
of a violation to the cause and effect of a hazard that
must be significant and substantial. U.S. Steel Mining
Company,
Page 23
~681
Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining
Company, Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
The question of whether any particular violation is
significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).
Citation No. 3061706
I conclude and find that the loose and broken wire mesh
guard over the engine drive shaft and couplers constituted a
significant and substantial violation. The location of the engine
was such that it was readily available to anyone stepping across
from one side of the dredge to the other, and given the fact that
the angle iron guard support had broken through fatigue, I
believe that over time, as more strain was placed on the mesh
guarding by anyone stepping or walking on it, it would be
reasonably likely that the guarding would have given way. If this
had occurred while someone was stepping over it or walking on it,
he could have fallen into the moving drive shaft and couplers and
suffered injuries of a reasonably serious nature. Under the
circumstances, the inspector's "S&S" finding IS AFFIRMED.
I take note of the fact that although the citation issued by
Inspector Smiser makes reference to a potential drowning if
someone were to fall into the water and oil held in the bottom of
the dredge, no testimony was forthcoming from the inspector with
regard to this alleged hazardous condition, and my findings and
conclusions are limited to the question of possible contact with
moving machine parts because of the loose and unsecured wire mesh
guarding in question.
Citation No. 3061707
I conclude and find that the failure of the dredge operator
to wear a life jacket while performing his work duties on the
slippery deck of the dredge which was not protected by handrails
constituted a significant and substantial violation. Given the
fact that the dredge operator works alone in water which is
sometimes as much as 30 feet deep, if he were to slip and fall
off the dredge without a life jacket, and possibly strike his
head on the metal deck, I believe that one could conclude that he
would likely drown. The inspector's "S&S" finding IS AFFIRMED.
Page 24
~682
With regard to Citation No. 3061711, concerning the lack of a
fire extinguisher in the shop area where welding was taking place
with an electrical arc and cutting torch, the evidence
establishes that the welding work was not being performed inside
the shop where the 55-gallon drums of oil were stored in one
corner. The work was being done outside the shop some 12 to 15
feet from where the drums were located. Inspector Smiser conceded
that it was possible that the respondent was performing the
welding outside of the shop as a precautionary measure to insure
some distance between the welding work area and the area where
the drums were stored. The inspector also confirmed that in the
event of a fire, the employees in the shop area would have no
difficulty in exiting the shop. Mr. LeBlanc confirmed that the
welding work was taking place at ground level, and he did not
believe that any sparks generated by the welding activity could
reach the drums which were stored in the corner of the shop.
Based on the facts presented here, I cannot conclude that
the violation was significant and substantial. Given the fact
that the welding was taking place at ground level outside the
shop, and some distance from the stored oil drums, I find it
unlikely that any sparks generated by the welding activity would
reach the drums and ignite the oil and cause a fire. Further, I
find no evidence that the lack of a fire extinguisher presented
any electrical hazard. Under the circumstances, the inspector's
"S&S" finding IS REJECTED, and the citation is modified to a
non-"S&S" citation.
Size of Business and Effect of Civil Penalty Assessments on the
Respondent's Ability to Continue in Business
Based on the stipulations by the parties and Mr. LeBlanc's
unrebutted testimony concerning the size and scope of his
operation, I conclude and find the respondent is a very small
mine operator.
The parties have stipulated that payment of any civil
penalty assessments in this case will not adversely affect the
respondent's ability to continue in business. I adopt this
stipulation as my finding and conclusion on this issue.
History of Prior Violations
Mr. LeBlanc stated that he has operated his present business
since 1984. Although the petitioner's proposed stipulations,
Exhibit ALJ-1, and the information which appears on MSHA's
proposed assessment Form 100-179, reflects that the
Page 25
~683
respondent had no prior assessed violations for the 24-month
period prior to the issuance of the citations in issue in this
case, Mr. LeBlanc believed that he had three prior citations.
However, he could provide no further information, and the
petitioner could not elaborate further.
Since the burden of establishing any prior violations lies
with the petitioner, and since the petitioner did not present any
computer print-out or other evidence with regard to any prior
assessed violations, I conclude and find that for purposes of the
civil penalty assessments made by me for the violations which
have been affirmed, the respondent has no history of prior
assessed violations.
Good Faith Compliance
Mr. LeBlanc testified that his operation has never
experienced an accident or injury, and that he has a concern for
the safety of his employees and has always taken prompt
corrective action to abate any violative conditions brought to
his attention. He confirmed that he always welcomes any MSHA
inspection in order to maintain a safe working environment for
his employees, and that all of the citations in this case were
promptly abated within 24 hours.
Inspector Smiser agreed with Mr. LeBlanc's testimony, and
the parties have stipulated that all of the citations were abated
in good faith by the respondent within 24 hours. Accordingly, I
conclude and find that the respondent exhibited rapid good faith
compliance in correcting the cited conditions, and this is
reflected in the civil penalties which I have assessed for the
violations which have been affirmed.
Negligence
For the reasons stated by the inspector, I agree with his
moderate negligence findings with respect to Citation Nos.
3061706, 3061707, and 3061711, and these findings are all
affirmed. I also agree with his low negligence findings with
respect to Citation No. 3061712, and his finding in this regard
is affirmed.
Gravity
In view of my "S&S" findings with respect to Citation Nos.
3061706 and 3061707, I conclude and find that these violations
were serious. I further conclude and find that the violation
cited in Citation No. 3061711, was non-serious.
Page 26
~684
Civil Penalty Assessments
On the basis of the foregoing findings and conclusions, and
taking into account the requirements of section 110(i) of the
Act, I conclude and find that the following civil penalty
assessments are reasonable and appropriate for the violations
which have been affirmed in this proceeding:
Citation No. Date 30 C.F.R. Section Assessment
3061705 03/01/88 56.14006 $ 30
3061706 03/01/8 856.14001 $ 70
3061707 03/01/88 56.15020 $ 65
3061708 03/01/88 56.14001 $ 20
3061711 03/01/88 56.4606(a)(1) $ 20
3061712 03/01/88 56.14001 $ 20
ORDER
The respondent IS ORDERED to pay the civil penalties
assessed in this proceeding within thirty (30) days of this
decision and order. Upon receipt of payment by the petitioner,
this case is dismissed.
Citation Nos. 3061709, 3061710, 3061713, and 3061714 ARE
VACATED, and the proposed civil penalty assessments ARE denied
and dismissed.
George A. Koutras
Administrative Law Judge
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